Serrano v. Martinez

FILED
United States Court of Appeals
Tenth Circuit
June 16, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RUDOLPH GERMAN SERRANO,
Plaintiff - Appellant,
v. No. 16-2076
(D.C. No. 1:15-CV-01063-KG-KK)
OFFICER G.A. BUHL; OFFICER B. (D.N.M.)
MCKINNEY,
Defendants - Appellees,
and
GOVERNOR SUSANA MARTINEZ;
MAYOR GREGORY HULL; CHIEF
MICHAEL GEIER,
Defendants.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MORITZ, Circuit Judges. **
Plaintiff-Appellant Rudolph German Serrano appeals from the dismissal
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
without prejudice of his civil rights complaint, 42 U.S.C. § 1983. Mr. Serrano
sought damages against several defendants, alleging that he was unlawfully
arrested and the police report on his arrest contained misrepresentations. See
Serrano v. Martinez, No. 15-cv-1063-KG-KK (D.N.M. Dec. 3, 2015). The district
court dismissed his claims against all but a single defendant for failure to state a
claim and ordered Mr. Serrano to show cause by April 13, 2016, why the
remaining defendant should not be dismissed for improper service of process.
The court received Mr. Serrano’s response on April 14, 2016, and dismissed the
complaint without prejudice pursuant to Rule 41(b) for failure to comply with
Rule 4(m) and the district court’s orders. See Fed. R. Civ. P. 41(b), 4. Mr.
Serrano appeals, arguing his health prevented him from meeting the court-
imposed deadline and rehashing the merits of his claim.
Rule 4 requires a plaintiff to effect timely service on a defendant. Fed. R.
Civ. P. 4(m). The court reminded Mr. Serrano twice about the need to serve the
defendant or provide an address so the court could order service itself. Not only
did Mr. Serrano fail to provide an address but he failed to acknowledge or explain
this deficiency. Accordingly, the district court did not abuse its discretion in
dismissing the complaint. See Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.
2003) (standard of review); see also Bowens v. Sterling Corr. Facility, 533 F.
App’x 863 (10th Cir. 2013) (dismissing § 1983 suit for failure to comply with
court order).
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AFFIRMED. We DENY Mr. Serrano’s motion for leave to proceed without
prepayment of costs or fees.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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